Creighton v Tough - [2001] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CREIGHTON -v- TOUGH [2001] WADC 120

CORAM: COMMISSIONER GREAVES

HEARD: 17-19 APRIL 2001

DELIVERED : 22 MAY 2001

FILE NO/S: CIV 1149 of 1999

BETWEEN: ROY CREIGHTON
Plaintiff
AND
RICHARD TOUGH
Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accident - Soft tissue injury to neck and low back strain injury - No evidence to explain continuation and severity of symptoms 17 months after accident - No future loss of earning capacity - Damages for pain and suffering assessed as 4 per cent of a most extreme case - Past loss of earning capacity $21,300.00

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

COMMISSIONER GREAVES:

The plaintiff's claim

In the early morning of 2 February 1998, the plaintiff was stationary in a line of traffic on Tonkin Highway when the defendant drove into the rear of his utility vehicle. The defendant admits negligence. The plaintiff claims that as a result of the defendant's negligence the plaintiff has suffered injury resulting in pain, discomfort, shock, permanent disability, loss and damage. He claims that he suffered soft tissue injuries to the neck with a low‑grade arthropathy in the left C3/4 facet joint and at adjacent levels on the left. He claims also that he suffered aggravation to and/or acceleration of degenerative changes at the cervical spine. The plaintiff claims damages for pain and suffering, loss of amenities, and past and future economic loss, which the Court is now required to assess.

The plaintiff's evidence about his symptoms and disability

The plaintiff's evidence is largely contained in Exhibit 1 where he says at par 24 et seq that he was stationary when he heard a skid and felt a severe impact to the rear of his vehicle which was jolted forward. He continues:
"I am unable to recollect if my chest connected with the steering wheel upon impact, but I noticed that the steering wheel was bent following the impact. The back of my head struck the rear window due to the force of the impact. I recall being in shock and was disorientated.
… I felt a pain in my chest and stomach. I also felt soreness to my head and shoulders. I recall that I had my seatbelt on at the time of the accident and that I was assisted out of the car by a passerby."
The plaintiff describes the damage to his vehicle which is depicted in the photographs, Exhibit 6. Later in the morning, the plaintiff consulted his general practitioner, Dr McAuliffe, at which time the plaintiff says he was experiencing pain in his chest, to the left hand side of his neck and to his back. He continues at par 32 of Exhibit 1:
"I subsequently noted that the pain was increasing over the next couple of days. In particular, I noted that my back was feeling significantly more painful. Due to the severity of the pain I was experiencing to my body, I went to see Dr McAuliffe within the week, drawing his attention to my backaches. Accordingly, I was referred to the Physiotherapist located at the Spencer Road Medical Centre. I was treated by a Mr Guy Maddisson.
In addition to my physical injuries, I was suffering emotionally. I was an extremely active, adventurous and athletic prior to the accident. Due to my injuries, I was forced to sell my dirt bikes which I used to ride regularly. In addition, I was no longer able to ride my dune buggy. This is because the jolting motion of both these vehicles would only further aggravate my condition.
I also noticed that I was becoming increasingly irritable and moody. I felt unhappy about the fact that my wife Janene was forced to return to work. She took up a position as a computer teacher with St Bridgette's College in Lesmurdie. I felt that this was unfair on her since she was very attached to our new born son and found it difficult to not be around him.
I felt as if I had failed in my responsibility as a husband and a parent. I attempted to assist my wife with the housework, but became frequently frustrated with being unable to do simple chores such as hanging out the washing, sweeping and ironing."
At par 50 et seq of Exhibit 1, the plaintiff continues:
"At present I have difficulty performing any particular duties for long periods of time. However, I feel that I owe it to myself and to my family to persevere looking for work.
I am able to drive although I find it uncomfortable to drive for long periods of time.
Since my accident, I have had to limit my involvement in physically active duties. Prior to the accident, I used to ride dirt bikes my dune buggy. I used to also go to nightclubs. Following the accident, I have been unable to undertake these activities, due to the fear of further injuring my back by jarring.
I do some occasional fishing as a recreation. I have taken my three year old son 4 wheel driving but even doing that caused pain and I no longer do it.
I feel extremely frustrated and angry at my loss of physical capacity. I have driven myself to return to work as I do not wish to place any undue burden on my wife Janene. I dislike the feeling of being incapacitated and the fact that I am forced to rely on painkillers on a daily basis.
Around the home I do the gardening, but I do small amounts at a time and always have pain as a consequence of it. I have cleaned out the gutters once, done a small amount of painting and some sweeping.
My personal life has been affected by the accident. I am no longer able to enjoy sexual relations with my wife and feel inadequate because of this. I am particularly conscious of my son and I am afraid that I will be unable to adequately bond with him as he grows up or play games with him. This is because I am restricted in my sporting and physical abilities generally.
I feel inadequate because of my injuries. I used to be a very physically active and fit man and have always performed work and recreational activities that have strengthened my body. Since the accident, I am unfit, have put on weight and have lost muscle tone and have basically sacrificed my way of life."
In cross‑examination the plaintiff said that he now weighs about 105 kilograms and feels as though he is overweight. He said he no longer does anything to keep himself fit because of his injuries. He said he used to do muscle toning work at the gym which he does not do now because he fears the exercise would hurt his back and left shoulder. He says he feels there is a chock in his left shoulder. He says he has a sore back just below the belt line on the hips, problems in his shoulder and neck pain "… if I over exert my arm too much or I turn too swiftly and keep my neck turned." He said he also suffers from anxiety attacks, headaches and sees stars behind his eyes. He said he has pain in his lower back most of the time. He said he gets headaches when he is working and in bright sunlight. He said his symptoms are worse now than they were at the time of the accident. He said:
"I've just worked and worked and worked myself into the ground and now I'm left worse off. … I want to go back to work … not in a manual labour sense …"
The plaintiff's evidence is that he is now 32 years old and was born on 14 February 1969. He left high school at the end of year 10 in 1984. He was married in 1994. His evidence is that he was in continual employment after he left school and it seems that for more than eight years prior to the accident he was employed as a courier driver in various different positions. He says that in 1997 he secured a position with East West Transport. His duties involved driving the truck and transporting cargo around the metropolitan area. At par 19 at Exhibit 1 he says:
"I felt that I was not earning enough to support myself, my wife and my soon to be born baby. So I decided to seek employment in an alternative industry. I secured a position at All Plant Mechanical as a sandblaster in August 1997. My duties involved working for up to 12 hours a day and it was very labour intensive. I generally worked 6 days per week. Occasionally, I would also be required to work 7 days, that is work on a Sunday as well.
The plant was located in Caversham and was a considerable distance away from my home. However, I was prepared to make the sacrifice in the interests of earning money for my family. I was earning approximately $1,200 net per week. This was the most amount of money I had earned in my working life and I was determined to continue working in the industry.
… I was unable to return to my work at All‑Plant Mechanical as a sandblaster as it involved very heavy manual labour. Nor were any light duties available. In addition to this, my ute was a total write off and I was unable to travel the distance to my place of employment.
… I was becoming increasingly frustrated by my inability to work. I decided that I had to return to work. Sandblasting was out of the question, so I returned to my previous employers at East West Transport in June of 1999 as a parcel run driver."
The evidence is that the plaintiff was unemployed for 17 months after the accident during most of which he received financial assistance from his income protection insurance. He returned to work as a courier driver in June 1999. An incident at work temporarily aggravated his neck symptoms. In August 1999 he obtained work as a storeman. Following a further incident shortly thereafter, the same employer retained him as a general hand in the erection of prefabricated sheds. The plaintiff remained in this position until 22 September 2000 when he was retrenched. The plaintiff said he has not worked since although he says he wishes to do so.
Before me, the plaintiff explained the nature of his work at All‑Plant Mechanical as a sandblaster stripping paint from vehicles. The photographs Exhibit 2 depict a person carrying out similar work in suit and helmet. The plaintiff said he was also required to crawl underneath the vehicle and move his head around inside the helmet. His evidence is he believes he cannot undertake similar work now because of his injuries.

The evidence in support of the plaintiff's claim

The plaintiff's wife gave evidence that:
"Roy actually did a little bit of work in January, was trying to get back in do some truck driving work, and he was just so tired, grumpy, irritable, just awful to be around. He just had ‑ he had to move out of the house because we just weren't coping."
She said that the plaintiff becomes grumpy and irritable if he does anything physical.
In cross‑examination she was asked whether he always holds himself rigid as he did in the back of the courtroom. She said not always, if he has taken Panadeine Forte, he is a lot looser. She agreed that he is a "semi invalid". She said if the plaintiff takes Panadeine Forte he can usually cope.
Mr Cameron Lahtz said:
"When he first had the accident he could hardly walk around, finding it hard to sit up, sit down, type of thing; couldn't pick up his own son just after he had the accident, just things like that. It's slowly got better and better but he's nothing like he was."
Mr John McDonald was his employer at All Plant Mechanical services. He described the work which the plaintiff undertook prior to the accident. He gave evidence that he first approached the plaintiff when the firm was very busy because he knew the plaintiff. The plaintiff did not approach Mr McDonald.
The general practitioner, Dr John McAuliffe, referred to his report of 12 March 1998 in Exhibit 7 where he records that the plaintiff received "severe cervical whiplash with associated minor lumbar strain" in the accident and complained of severe restriction of movement with pain in the cervical spine. Dr McAuliffe expressed the opinion that the plaintiff may suffer permanent possible restriction in cervical movements with pain and associated headaches and referred him for physiotherapy to restore a pain free and full range of movement to the cervical spine. He was of the opinion that most of the plaintiff's pain is probably soft tissue and primarily coming from muscles.
In cross‑examination Dr McAuliffe expressed the opinion that the plaintiff has a soft tissue injury to his neck which is not going to show up on any objective tests. He considered the plaintiff suffered greater disability in his neck than in his lower back. Dr McAuliffe accepted that he relied upon the plaintiff as always in determining the severity of the soft tissue injury and lumbar strain. He expressed the opinion that the plaintiff seemed to have constant pain and stiffness in his cervical spine and to a minor extent in his lumber spine. He also expressed the opinion that this constant pain and stiffness made the plaintiff incapable of doing physical work "except on a few occasions where he has attempted to do and invariably failed". The plaintiff's evidence, as I have said, is that he undertook a range of light duties from 1 June 1999 to 22 September 2000.
The plaintiff was referred to the consultant physician in rehabilitation medicine, Dr John Ker who first saw him on 16 August 1999. Dr Ker records in his report at p 46 of Exhibit 7 that the plaintiff told him that his back had significantly improved. The plaintiff told him that he still had pain in his neck and said "I still know it is not right." The plaintiff continued to experience neck pain with some neck stiffness, particularly in rotational movements. He described the radiation of discomfort towards the left shoulder region but there was no evidence to suggest any radiation of pain into the left upper limb or neurological impairment of his arm.
Dr Ker reported that his clinical examination demonstrated the plaintiff was in no immediate distress. In the cervical spine, Dr Ker found the plaintiff to be tender predominantly in the midline over the lower half of the cervical region. There was no associated protective muscle spasm. He also described discomfort on palpation to the left of the midline in the fibres of the trapezius muscle above the spine of the scapular. He flexed with his chin to within 1.5 centimetre of the manubrium sternum. Extension was modestly limited through 20 degrees. Rotational movement to right and left was reduced by 15 degrees and rotation to the right reproduced left supra‑scapular pain. He undertook a full range of bilateral shoulder movement and Dr Ker's neurological evaluation of his upper limbs was quite within normal limits. In his thoraco‑lumbar spine, he found that with palpation in the prone position he reported pain at the lumbo‑sacral junction. His back extension from this position was less than 10 degrees. Rotation of the thoraco‑lumbar spine was to 35 degrees left and right. He flexed with his fingers to two centimetres from the ankle joint. There was no restriction of straight leg raising and neurological examination of his lower limbs was within normal limits.
Dr Ker expressed the opinion that the plaintiff sustained a cervical musculo‑ligamentous strain injury in the accident and since that time suffered modest low back pain. He considered the pain could be controlled from time to time by simple analgesia or physiotherapy. He expressed the opinion that the cervical spine injury would likely prevent the plaintiff from returning to sandblasting work but he was capable of returning full‑time to work in the transport industry.
Dr Ker saw the plaintiff again on 14 August 2000 when the plaintiff complained that he continued to experience pain both in the lower cervical and mid lumbar region which he described as a constant feeling of discomfort. The plaintiff reported that he had become somewhat disconsolate since being retrenched and was equally apprehensive about what he was going to do in the future to maintain some form of regular income. Dr Ker concluded that "this man's future ability to work is under threat … I believe his ability even to sustain light employment is in jeopardy." Dr Ker saw the plaintiff again on 28 February 2001. In his report of 20 March 2001, Dr Ker reflects on the history and the fact that the plaintiff has not found work since his retrenchment. He records again that the plaintiff remained quite apprehensive about his future. He expresses the opinion that the plaintiff is best suited to work which he can undertake seated or standing where he is able to change position regularly and where sustained manual materials handling is avoided.
Dr McAuliffe also referred the plaintiff to Dr John Whiteside who expressed the opinion on 29 June 1999 that the plaintiff suffered a very severe muscular injury on the left side of the neck and diagnosed myofascial pain syndrome. He said the plaintiff's problem is in the skeletal muscle system. He said in the lower back the right is affected from the T8 level down while the left is tight only from the L4-5 onwards. He recommended procaine injection therapy.

The defendant's evidence

The defendant called the consultant neurosurgeon, Mr Harold Schaeffer, who first saw the plaintiff on 12 May 1998. He said the plaintiff presented as a large powerfully built man who walked into the consulting room very slowly. He appeared to be a very introspective type of man who displayed very little animation. His weight was 100 kilograms and he was 185 centimetres tall. Mr Schaeffer reported on 14 May 1998 that clinical demonstration was accompanied by a good deal of abnormal illness behaviour. A very gentle examination was punctuated by grunting, groaning and grimacing. There was a marked degree of over reaction to gentle palpation to the back of his neck and also to the left side of his neck. Palpation was confined to the skin layers without any force being transmitted to the deeper structure. Palpation of his shoulder blades provoked a marked degree of over reaction. He held his neck and back stiffly.
Mr Schaeffer expressed the opinion that the motor vehicle collision was consistent with some subsequent symptoms of soft tissue musculo‑ligamentous strain. He considered that the plaintiff's residual symptoms were of no more than a moderate nature and a good deal less severe than he appears to believe. Mr Schaeffer saw the plaintiff again on 22 September 1999, some 16 months later. Mr Schaeffer records that the plaintiff held himself very stiffly throughout his examination and he was very cautious of any movement of his neck and low back region. He maintained the sitting position on the examination couch keeping his knees slightly flexed and, in this position, he reached a point of 2.5 centimetres from his ankle. Mr Schaeffer asked him to try and bend from the erect position and he indicated a complete inability to move his back.
Mr Schaeffer expressed the opinion that the extreme stiffness which he exhibited was inconsistent with the better range of mobility he had exhibited in the sitting position. In evidence, Mr Schaeffer explained that simulated rotation of the trunk on the hips without moving the back led him to the strong inference that there must be a significant non‑critical element in the case. He considered there was no evidence to suggest that the plaintiff has suffered any structural injury following the motor vehicle accident and the incidents at work in July and August 1999. In cross‑examination, he said he did not believe the plaintiff was suffering from physically‑induced pain. He considered the plaintiff was generally quite fit and should have good powers of recovery.
Mr Schaeffer saw the plaintiff again on 4 May 2000. He reported the plaintiff moved his neck cautiously and he was holding his muscles in a very tense manner. He reached mid calf level in the sitting position but again displayed a lesser range of flexion when bending from the erect position. Mr Schaeffer expressed the opinion that the only possible medical explanation for the plaintiff's continuing symptomatology was muscle tension, which he said was not a serious medical condition. He expressed the opinion that it has a strong psychological input and is very readily reversible. He expressed the opinion that the plaintiff was fit for shed erection work which he was then undertaking.

Mr Schaeffer finally saw the plaintiff on 20 March 2001 where he records that the plaintiff told him that he gave up his job in shed erection eight months previously because it caused him severe pain and he broke down and started weeping. He commented he would never do labouring work again. Mr Schaeffer expressed the opinion that the plaintiff presented in a subjective manner and there was a lack of correlation between his subjective symptomatology and the paucity of physical signs on examination. He continued:
"I gained a strong impression that his condition is essentially non‑physical in type and in relation to this, it is of interest that he is attending a psychiatrist on a regular basis."
He said he was unable to find evidence of physical disability or incapacity arising from the injury of 9 July 1999 and expressed the opinion that he was not satisfied the plaintiff suffers any physical disability or incapacity as a result of other accidents in which he has been involved.
The defendant also called Prof Peter Hollingworth who is adjunct Associate Professor of Occupational Health in the school of public health at Curtin University. He saw the plaintiff on 4 May 1998 and observed that the plaintiff holds himself very rigid. He said he was at a loss to explain why there had been so little improvement since the accident or why such a muscular young man should have such gross limitation of movements. He thought the plaintiff presented in an unusual way, "quite an odd way", and the prognosis should be guarded. Professor Hollingworth saw the plaintiff again on 1 June 1999. On examination he had a normal range of head and neck rotation and there was no tenderness in the cervical spine, in the midline, the facet joints or the upper thoracic spine. There was no tenderness in the medial border of the scapula, the supra spinous muscles or in the shoulders. There was no pain with resisted shrugging of the shoulders, abduction or adduction. The reflexes were symmetrical.
Professor Hollingworth expressed the opinion that the plaintiff had recovered from the soft tissue injuries but had not got back to his pre‑accident state, in that he was severely de‑conditioned. He recommended the plaintiff should undertake an exercise program to regain fitness. He said the plaintiff seemed keen to get back to his erstwhile physically fit self. It appears the plaintiff had difficulty with the exercise program. Professor Hollingworth observed that the weights involved in the program were less than those which the plaintiff confronted in shed construction. He gave evidence that in his opinion the plaintiff had become seriously de‑conditioned and needed to regain his fitness. He said he was still of the same opinion. He did not believe the plaintiff had suffered further injury in August or September 1999. He accepted that there might be some temporary recurrence of the original soft tissue symptoms.

The nature and extent of the plaintiff's injuries

It is axiomatic that the burden of proof in this case rests on the plaintiff to establish the compensible injuries which he suffered in the motor vehicle accident on 2 February 1998. The plaintiff's evidence establishes that he suffered a whiplash type soft tissue injury to the neck radiating into the left shoulder. His evidence also establishes that he suffered low back strain in the accident. His evidence establishes that he suffered temporary recurrence of these injuries at work both on 19 July 1999 and 9 August 1999.
I have explained the plaintiff's account of his symptoms from these injuries to the doctors and his evidence of those symptoms before the Court.
The medical evidence does not establish the extent to which the plaintiff's continuing symptoms since the accident have resulted from the injuries sustained in the accident. The evidence of Dr Whiteside is that the plaintiff continues to suffer from a very severe muscular injury on the left side of the neck and that until these muscles are correctly treated he will have ongoing residual disability. The evidence of Dr Whiteside does not establish why the muscles on the left side of the plaintiff's neck continue to be extremely tight and tender. Apart from incidents of temporary recurrence, the medical evidence otherwise establishes that the plaintiff's injuries to his muscles should have made a complete recovery given his age and physical fitness at the time of the accident. The medical evidence establishes that the plaintiff can and should regain that level of fitness.
Otherwise, the evidence for the plaintiff does not establish that his neck and lower back injuries are consistent with the continuation of and the severity of his symptoms. The evidence of Mr Schaeffer and Prof Hollingworth for the defendant, on the other hand, suggests that the evidence of the plaintiff about the continuation of and severity of his symptoms is exaggerated.
In the absence of expert evidence to explain the continuation of and severity of the plaintiff's symptoms, the objective evidence before the Court leads to the conclusion that the plaintiff sustained a soft tissue injury to the neck at a time when he was a very fit young man. It also appears that he suffered a low back strain injury. I find that the plaintiff experienced the symptoms of these injuries until he returned to work in June 1999.
I find that thereafter the plaintiff has believed he continues to suffer the symptoms of these injuries and that they are now worse rather than better. There is no explanation for that belief. All the evidence suggests there is no reasonable basis for it and therefore I do not accept the plaintiff's evidence about it and the consequences which he says he suffers. I have considered the evidence the plaintiff was a very fit young man prior to the accident and did not exhibit the symptoms he continues to complain of. On all the evidence, I am not prepared to infer his continued symptoms are accident caused.
On the objective evidence, I find the plaintiff was capable of returning to work as a courier driver after the accident and at all times until he obtained further employment at East West Transport in June 1999 as a parcel run driver. In the absence of explanation for the continuation of and the severity of the plaintiff's symptoms and in the light of the evidence of Mr Schaeffer and Prof Hollingworth, I find also that the plaintiff was capable of working again as a sandblaster from June 1999.

Past loss of earning capacity

The plaintiff is therefore entitled to damages for partial incapacity from 2 February 1998 to 10 June 1999. I assess this loss as the difference between his net income of $725 per week as a sandblaster and his approximate net income as a courier driver in 1997 of $425 per week or $300 per week, for 71 weeks at $300, being $21,300, plus interest at 3 per cent per annum for three years 10 weeks on $21,300, being $2,039.88.

Future loss of earning capacity, medical expenses and rehabilitation expenses

The evidence establishes the plaintiff is entitled to no award of damages under these heads.

Special damages

The plaintiff is entitled to special damages in the sum of $447.60.

Pain and suffering

On the evidence and my conclusions about the nature and extent of the plaintiff's injuries, I assess damages under this head as 4 per cent of a most extreme case or 4 per cent of $225,000 being $9,000. Since this sum is below the threshold, there can be no award to the plaintiff.

Conclusion

Accordingly, the plaintiff is entitled to the following award:
Past loss of earning capacity  $21,300.00
Interest at 3 percent per annum for
3 years 10 weeks  $2,039.88
Special damages  $447.60
$23,787.48